Coronavirus (COVID-19): Discrimination and Accommodation Considerations
Author: XpertHR Editorial Team
As employers everywhere confront the global coronavirus (COVID-19) pandemic, they are finding it a constant challenge to protect the health and safety of their workforce; protect the privacy of employee medical information and comply with federal antidiscrimination laws such as Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA).
To help employers navigate the impact of COVID-19 on the workplace without violating federal antidiscrimination laws, the Equal Employment Opportunity Commission (EEOC) has released the publication What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and updated its publication Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Additionally, the EEOC hosted a webinar providing answers to employers' Frequently Asked Questions. This EEOC guidance clarifies employment protections as applied to COVID-19.
Below are some employment discrimination, accommodation and medical privacy issues to consider during the pandemic.
Disability-Related Inquiries and Medical Exams
The ADA generally prohibits employers from asking an employee questions that are likely to elicit information about a disability unless the inquiry is job-related and consistent with business necessity.
The EEOC publication entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act states that generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
- An employee's ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition.
The EEOC advises an employer to look to the latest CDC or state or local public health assessments for determining whether COVID-19 poses a direct threat that justifies disability-related inquiries and medical exams.
If employees are physically entering the workplace during the COVID-19 pandemic, an employer may:
- Implement temperature screening measures for employees;
- Ask employees whether they have COVID-19 or related symptoms or whether they have been tested for COVID-19;
- Ask employees whether they have interacted with anyone that has COVID-19 or related symptoms (do not limit this inquiry to family members as this may violate the Genetic Information Nondiscrimination Act and would limit the information obtained about an employee's potential exposure to COVID-19);
- Send an employee home from work if they exhibit COVID-19 symptoms, refuse to answer any disability-related inquiries (such as above), refuse to cooperate with temperature screening measures, refuse to answer questions about whether they have COVID-19 and/or have been tested for COVID-19; or
- Require a doctor's note certifying an employee's fitness for duty prior to allowing them back into the workplace.
Updated guidance from the EEOC clarifies that employers may administer COVID-19 testing (including temperature taking) before allowing employees back into the workplace during the duration of the pandemic. For employers administering such testing, the guidance advises employers to:
- Make sure the tests are accurate and reliable by reviewing guidance from the Food and Drug Administration (FDA), the Centers for Disease Control (CDC) and other public health authorities, and then periodically checking for updates;
- Consider the incidence of false-positives or false-negatives associated with a particular test;
- Remember that accurate testing only reveals if the virus is currently present, and that a negative test does not mean the employee will not acquire the virus later; and
- Continue to require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing and other measures) in the workplace to prevent transmission of COVID-19.
An employer is generally prohibited from singling out employees to answer medical inquiries or undergo testing or examinations, including having their temperature taken. An employer may, however, ask one, or a few select employees, about exposure to COVID-19 or require an employee to have their temperature taken or undergo other screening or testing if the employer has a reasonable belief, based on objective evidence that a particular employee(s) may have COVID-19, for example the employee has a persistent, hacking cough.
In order to contain the spread of COVID-19, some states require employers to administer COVID-19 testing, including temperature taking, under certain circumstances. For example, although the requirements vary, employers in Colorado, Kentucky, New Hampshire and Vermont are required to conduct temperature checks. Certain industries, such as health care and retail, may have additional screening requirements. As states ease workplace restrictions, and businesses start to reopen, employers may consider making workplace screenings a condition of employment, taking into account reasonable accommodations based on disability and/or religion.
The EEOC also provides guidance for employers hiring during the COVID-19 pandemic and states that after extending a conditional job offer to an applicant, an employer may screen for COVID-19 symptoms, ask them about their exposure to COVID-19, request to take their temperature or require them to undergo a medical examination as long as it does so for all entering employees in the same job type regardless of whether the individual has a disability.
An employer also may:
- Postpone a job applicant's start date if they have COVID-19 or related symptoms; and
- Withdraw a job offer if it needs a job applicant to start immediately, but the individual has COVID-19 or related symptoms.
Confidential Medical Information and Privacy Rights
The ADA requires an employer to keep all employee medical information confidential even if it is not disability-related. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. Certain COVID-19 information, such as a COVID-19 diagnosis, is considered medical information under the ADA and should therefore be kept confidential and private.
Supervisors and managers should follow existing confidentiality protocols and maintain any COVID-related medical information in a medical file, separate from regular personnel files, and only disclose this information to those who need to know to protect workplace health and safety. This may vary depending upon the specific workplace. If working remotely makes it impossible to follow existing confidentiality protocols, managers and supervisors should secure this information by keeping hard copies in a safe place, restricting electronic access and potentially encoding the information (e.g., use initials or another code to maintain confidentiality and protect the employee's privacy).
An employer may notify any employees who may have been exposed to an employee who tests positive for COVID-19, or exhibits related symptoms; however, such notification may not reveal or confirm the individual's identity. In this type of scenario consider:
- Limiting the number of people who need to know the individual's identity (e.g., a designated representative of the employer who interviews the employee to obtain a list of those the employee may have had contact with in the workplace for notification purposes);
- Instructing any employees who know the individual's identity to maintain confidentiality; and
- Planning in advance for if this situation arises, (e.g., who will be responsible for receiving such information and what the next steps are).
It is not a violation of an employee's privacy rights to disclose that the employee is working from home during the COVID-19 pandemic, as other staff may need to know how to reach a remote employee. However, that disclosure is limited to the fact that the employee is working from home, and should not include additional details involving medical information (e.g., that the employee has COVID-19 or related symptoms).
An employer may notify public health authorities if an employee has COVID-19 or related symptoms, or was exposed to someone with COVID-19 or symptoms of COVID-19. Such notification is allowable because an employee's COVID-19 status, or exposure to COVID-19, poses a significant risk of substantial harm to the workplace.
Be careful when taking negative employment actions (e.g., termination, demotion) against individuals with COVID-19. While it is unclear if COVID-19 will be classified as an actual disability under the ADA, it is still unlawful to discriminate against an employee for a perceived disability or based on their association with those with actual or perceived disabilities.
During the pandemic, public health and workplace safety are reasonable justifications for taking negative employment actions such as barring an individual from the workplace or sending them home if they exhibit COVID-19 symptoms as this poses a direct threat to workplace health and safety.
Disability Accommodations and the Interactive Process
According to the EEOC, it is unclear whether COVID-19 is or could be a disability under the ADA. The CDC has identified a number of medical conditions that may put an individual at a higher risk of a serious illness if they contract COVID-19, (e.g., chronic lung disease, serious heart conditions, diabetes, liver disease). Additionally, the EEOC advises that employees with certain preexisting mental health conditions (i.e., anxiety disorder) may have more difficulty handling the disruption to daily life created by the COVID-19 pandemic.
If an employee advises their employer that they have a medical condition that may be exacerbated by contracting COVID-19, and requests a reasonable accommodation (e.g., remote working), communicate with the employee and exchange information in an effort to reasonably accommodate the employee (i.e., engage in the interactive process). This may include taking the following steps:
- Verify the employee has a disability;
- Verify that an accommodation is needed;
- Obtain recommendations of the types of accommodation needed;
- Consider whether the employee's request is reasonable; and
- Consider whether an employee's request for a reasonable accommodation imposes an undue hardship on the employer's business (i.e., a significant expense or difficulty to the employer's business operations under current circumstances).
Reasonable accommodations may include:
- Additional protective equipment such as gowns or gloves;
- Changes to the work environment such as plexiglass, tables or other barriers;
- Increasing the space between an employee with a disability and others;
- Temporary job restructuring of certain marginal job duties;
- Temporary transfer to a different position;
- Modifying a work schedule or shift assignment if doing so decreases contact with coworkers and/or the public when on duty or commuting; or
- Moving where an employee performs work to increase social distancing.
During the pandemic it may be more difficult to quickly obtain verification of a disability, and types of recommended accommodations from a health care provider. Some requests for accommodation may require an employer's immediate attention, such as when an employee has a disability placing them at higher risk. The EEOC suggests more flexible ways to handle delays from health care providers, such as:
- Ask the employee to provide prescriptions or health insurance records to verify a disability; or
- Grant a request on a temporary basis while awaiting a response from a health care provider.
Try to be as flexible and creative as possible. Keep in mind, however, that an employer is not obligated to provide a reasonable accommodation if it creates an undue hardship (i.e., significant difficulty or expense) when considering the requested accommodation's nature and cost, the employer's resources and business operations. It is possible that an accommodation that would not have posed an undue hardship prior to the COVID-19 pandemic may pose one now.
In assessing undue hardship, the following may be relevant considerations:
- The employer's loss of income due to the pandemic;
- The amount of discretionary funds available at this time when considering the employer's other expenses; and
- The expected date that current restrictions on an employer's operations will be lifted or new restrictions added or substituted.
If the requested accommodation poses an undue hardship, the employer should consider whether there are any alternative accommodations that can help the employee perform the essential functions of the job without creating an undue hardship.
The EEOC has indicated that the pandemic might result in excusable delays during the interactive process. Due to COVID-19, employers may be confronted with unexpected or increased requests for reasonable accommodations. As a result, there may be a delay in discussing requests and in providing accommodation where warranted. Nevertheless, employers should address these requests as soon as possible and employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
Managing Individuals Where COVID-19 Presents a Direct Threat to Their Own Health
Employers must be careful not to exclude employees from the workplace or take other adverse action (i.e., termination, demotion) solely because the employee has a disability that the CDC identifies as placing them at a higher risk for severe illness if they contract COVID-19. An employer may only take such actions if the employee's disability poses a direct threat or a significant risk of substantial harm to their own health that cannot be eliminated or reduced by a reasonable accommodation.
In assessing whether an employee's disability poses a direct threat to their own health in light of COVID-19, an employer must consider:
- The employee's particular disability (not the disability in general) in light of the most current medical knowledge or best available objective evidence;
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
In light of COVID-19, an employer should also consider:
- The severity of the pandemic in a particular area;
- The employee's own health and management of the employee's disability;
- The employee's particular job duties;
- The likelihood that the employee will be exposed to the virus at the worksite; and
- The ability of the employer to take measures to protect all workers, such as mandatory social distancing.
If the employer concludes that an employee's disability poses a direct threat, it must engage in the interactive process with the employee and consider whether reasonable accommodations may be able to eliminate or reduce the risk so that the employee may safely return to work and perform their essential job functions. If returning to work safely is not possible under the circumstances, consider accommodations that would allow the employee to continue work such as:
- Leave of absence; or
- Reassignment to a different job in a place where it may be safer for the employee to work or a job that permits telework.
Excluding the employee from the workplace or terminating employment should be a last resort and required only if the employer concludes that the employee's disability poses a direct threat to their health that cannot be eliminated or reduced by any reasonable accommodation.
Personal Protective Gear Accommodations
As employees reenter the workplace, in order to control the spread of the virus that causes COVID-19 in the workplace, an employer may require an employee to wear personal protective gear such as a mask or face covering and gloves. It is important to keep in mind that an employer may need to provide modified or alternative equipment if faced with a request for a reasonable accommodation based on disability and/or religion. Modified equipment and gear may include:
- Non-latex gloves (for employees with allergies);
- Modified face masks (to accommodate religious needs and those who are hard of hearing);
- Gowns designed for individuals who use wheelchairs; and
- Modified equipment (to accommodate religious dress).
The employer should discuss the request and provide the accommodation, or a reasonable alternative, if there is no undue hardship.
Other Discrimination Issues
Employees and job applicants are entitled to equal employment opportunity under Title VII and the Age Discrimination in Employment Act (ADEA). COVID-19 fears or health concerns are not an excuse to single out or treat an employee or job applicant differently based on their protected characteristics (e.g., age or nationality). As such, employers may want to remind their workforce that it is a violation of federal, state and local employment laws, as well as the employer's workplace policies, to discriminate, harass or retaliate against any individual based on protected class status. Discrimination takes many forms including derogatory comments, harassing slurs, unfair stereotypes and adverse employment actions such as poor performance reviews, demotion or termination.
National Origin Discrimination. During the COVID-19 pandemic, be on high alert for discrimination, harassment and hate crimes against individuals of Asian descent as this may constitute discrimination based on national origin (as well as race or religion). Employers need to be aware that harassment may occur through electronic communications (e.g. emails and chat communications) as well as in person. As a result, employers should remind their workforce of the prohibition of harassment under Title VII, that harassment will not be tolerated, and encourage reporting of workplace harassment.
Age Discrimination. The ADEA prohibits age discrimination against workers age 40 and older, and employers should not take any negative employment actions against older workers based on their age. For example, an employer should not exclude older workers from the workplace based solely on the belief that they may be at a higher risk of severe illness if they contract COVID-19, if it does not take such actions against employees under age 40.
Note: the ADEA does not include an accommodation provision requiring an employer to grant an older employee's request for an accommodation based on COVID-19 concerns. However, if an employer provides a similar accommodation to comparable workers, it should not treat an older worker differently. Further, according to the EEOC, the ADEA does not prohibit employers from providing flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age. In addition, if an older worker has a medical condition they may be entitled to a reasonable accommodation for a disability under the ADA.
Pregnancy Discrimination. Do not take any negative employment actions against a pregnant employee (i.e., layoff or furlough) if the decision is solely based on the individual being at a higher risk of severe illness if they contract COVID-19. Actions based solely on an employee's pregnancy constitute sex and pregnancy discrimination under Title VII, as amended by the Pregnancy Discrimination Act.
With respect to accommodations, a normal healthy pregnancy alone does not trigger ADA accommodation rights. However, a pregnancy-related medical condition may nonetheless qualify as a disability for purposes of the ADA, which may give rise to the need for reasonable accommodations. Further, Title VII, as amended by the Pregnancy Discrimination Act, requires that an employer treat a pregnant worker the same as other persons not so affected, but who are similar in their ability or inability to work for all employment-related purposes. According to the EEOC, this means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. In addition, state or local laws may provide enhanced protections for pregnant workers.